Conduct of Business Pending the Effective Time. SECTION 5.01. Conduct of Business by the Company Pending the Effective Time. The Company covenants and agrees that, between the date of this Agreement and the earlier of the termination of this Agreement pursuant to Article VIII hereof or the Effective Time, except as set forth on Schedule 5.01 of the Company Disclosure Schedule or unless Parent shall (in its sole discretion) otherwise agree in writing, the businesses of the Company and the Subsidiaries shall be conducted only in, and the Company and the Subsidiaries shall not take any action except in, the ordinary course of business and in a manner consistent with past practice; and the Company shall use its reasonable best efforts to preserve substantially intact its business organization, to keep available the services of the current officers, employees and consultants of the Company and the Subsidiaries and to preserve the current relationships of the Company and the Subsidiaries with customers, suppliers and other persons with which the Company or any Subsidiary has significant business relations. By way of amplification and not limitation, except as contemplated by this Agreement or as expressly set forth on Schedule 5.01 of the Company Disclosure Schedule, neither the Company nor any of the Subsidiaries shall, between the date of this Agreement and the earlier of the termination of this Agreement pursuant to Article VIII hereof or the Effective Time, directly or indirectly, do, propose or commit to do, or authorize any of the following, without the prior written consent of Parent:
(a) amend, repeal or otherwise change the Company's or any of its Subsidiary's Organizational Documents;
(b) issue, sell, pledge, dispose of, grant or encumber, or authorize the issuance, sale, pledge, disposition, grant or encumbrance of, any Shares or any shares of capital stock of any class of the Company or the Subsidiaries, or any options, warrants, convertible securities or other rights of any kind to acquire any Shares or shares of such capital stock, or any other ownership interest (including, without limitation, any phantom interest), of the Company or any Subsidiary (except, subject to Section 2.04(a) hereof, for the issuance of shares of Common Stock pursuant to the exercise, in accordance with their respective terms, of employee stock options or other awards outstanding on the date hereof as set forth on Schedule 3.03-1 of the Company Disclosure Schedule);
(c) transfer, lease, license, sell, mortgage, pledge, ...
Conduct of Business Pending the Effective Time. At all times from the execution of this Agreement until the Effective Time, except as set forth in Schedule 5.10 or as expressly permitted elsewhere in this Agreement, Seller shall conduct the Business in the Ordinary Course of Business and in compliance in all material respects with all applicable Legal Requirements, and use Best Efforts in light of its available cash, to preserve substantially intact the Business and goodwill of its customers and suppliers, keep available the services of its officers and employees and preserve the relationships with those Persons having business dealing with Seller with respect to the Business. Furthermore, except as set forth in Schedule 5.10 or as expressly permitted elsewhere in this Agreement, Seller agrees not to take any of the following actions without the prior written consent of Buyer:
(a) amend its Governing Documents;
(b) (i) issue, deliver, pledge, transfer, dispose of or encumber any shares of capital stock or other equity or voting interests of Seller or any securities convertible into, exchangeable or exercisable for or representing the right to subscribe for, purchase or otherwise receive any such shares or interests or any stock appreciate rights, “phantom” stock rights, performance units, rights to receive shares of capital stock or other rights that are linked to the value of Seller’s common stock or the value of Seller or any part thereof, provided, however, that none of the foregoing shall prohibit the issuance of Seller common stock upon the exercise of valid stock options outstanding as of the date of this Agreement;
Conduct of Business Pending the Effective Time. From and after the date hereof and prior to the Effective Time or the date, if any, on which this Agreement is earlier terminated pursuant to Section 7.1 (the "Termination Date"), and except as may be agreed in writing by the other parties hereto or as may be provided for or permitted pursuant to this Agreement:
(a) ASARCO shall, and shall cause each of its Subsidiaries to, conduct its operations according to their ordinary and usual course of business in substantially the same manner as heretofore conducted;
(b) ASARCO shall use its reasonable best efforts, and cause each of its Subsidiaries to use its reasonable best efforts, to preserve intact its business organizations and goodwill, keep available the services of its current officers and other key employees and preserve its relationships with those persons having business dealings with it (including its relationships with customers, suppliers, employees and business partners);
(c) ASARCO shall confer at such times as Parent may reasonably request with one or more representatives of such requesting party to report material operational matters and the general status of ongoing operations (to the extent such requesting party reasonably requires such information);
(d) ASARCO shall notify Parent of any emergency or other change in the normal course of its or its Subsidiaries' respective businesses or in the operation of its or its Subsidiaries, respective properties and of any complaints or hearings (or communications indicating that the same may be contemplated) of any Governmental Entity if such emergency, change, complaint, investigation or hearing would have a Material Adverse Effect on ASARCO;
(e) ASARCO shall not, and shall not permit any of its Subsidiaries to, (i) declare, set aside, authorize or pay any dividends on or make any distribution with respect to its outstanding shares of stock, except in the case of ASARCO and its majority owned subsidiary Southern Peru Copper Corporation for regular quarterly cash dividends on the outstanding shares of their common stock and except for cash dividends by a wholly owned Subsidiary to a parent, or (ii) split, combine or reclassify any of its shares of capital stock;
(f) ASARCO shall not, and shall not permit any of its Subsidiaries to, except (i) in the ordinary course of business consistent with past practice, (ii) as otherwise provided in this Agreement or (iii) as required by applicable Law, adopt or amend any Employee Benefit Plan;
(g) ASARCO shall not...
Conduct of Business Pending the Effective Time. Seller agrees that from the date hereof until the Effective Time, unless (i) otherwise consented to by Purchaser in writing (which consent shall not be unreasonably conditioned, withheld or delayed), (ii) contemplated or permitted by this Agreement or (iii) necessary or appropriate in connection with the development of the Future Restaurant, Seller (a) shall conduct the Business (I) in substantially the same manner as heretofore conducted and (II) in the ordinary course of business consistent with past practice and (b) shall not dispose of or remove any Assets other than (A) sales of Inventory or (B) in the ordinary course of business and consistent with past practice and (c) shall not enter into any Contracts relating exclusively to the Restaurants except in the ordinary course of business and consistent with past practice.
Conduct of Business Pending the Effective Time. At all times from the execution of this Agreement until the Effective Time, or as expressly permitted elsewhere in this Agreement, Seller shall conduct its business in the ordinary course consistent with past practice and in compliance in all material respects with all applicable Laws, and use commercially reasonable efforts to, preserve substantially intact its business organizations and goodwill, keep available the services of its officers and employees and preserve the relationships with those Persons having business dealings with Seller. Furthermore, Seller agrees not to take any of the following actions without the prior written consent of Parent (which will not be unreasonably withheld):
(a) amend its articles of organization, certificate of incorporation or bylaws, joint venture documents, partnership agreements or equivalent organizational documents or, except as set forth in this Agreement.
(b) (A) transfer, sell, lease, sublease or license or otherwise dispose of any material assets or properties of Seller or (B) mortgage or pledge any of the property or assets of Seller, or subject any such property or assets to any other Encumbrance (except Permitted Encumbrances), other than, in the case of both (A) and (B), in the ordinary course of business consistent with past practice;
(c) except in the ordinary course of business consistent with past practice, enter into, or amend or terminate any Seller Contract or any lease or sublease;
(d) make any excess capital expenditures without consent of Parent;
(e) merge, enter into a consolidation with or otherwise acquire a material position without consent of Parent;
(f) write down or write up or fail to write down or write up the value of any receivables or revalue any assets of Seller other than in the ordinary course of business and in accordance with GAAP;
(g) create, incur or assume any indebtedness for borrowed money
(h) change any of its methods, principles or practices of financial accounting currently in effect other than as required by GAAP as concurred by its independent accountant;
(i) (i) modify or amend in a manner that is adverse in a material respect to Seller, or accelerate, terminate or cancel, any Seller Contract, (ii) enter into, amend or modify any agreement or arrangement with Persons that are Affiliates, or (iii) enter into, extend or renew any contract which, if executed prior to the date of this Agreement, would have been required to be disclosed, other than, in each case, in the ord...
Conduct of Business Pending the Effective Time. Each of Dime and Xxxxxx agrees as to itself and its subsidiaries that, from and after the date hereof until the Effective Time, except insofar as the other party shall otherwise consent in writing (such consent not to be unreasonably withheld or delayed) or except as otherwise expressly contemplated by this Agreement or the Stock Option Agreements or as Previously Disclosed:
(a) The business of it and its subsidiaries will be conducted only in the ordinary and usual course and, to the extent consistent therewith, it and its subsidiaries will use all reasonable efforts to preserve intact their business organizations and assets and maintain their rights, franchises and existing relations with customers, suppliers, employees and business associates and to take no action that would (1) adversely affect the ability of any of them to obtain any necessary approvals of Governmental Entities required for the transactions contemplated hereby without imposition of a condition or restriction of the type referred to in the proviso to Section 7.1(b), (2) adversely affect its ability to perform its obligations under this Agreement or the Stock Option Agreements or (3) be reasonably likely to result in a Material Adverse Effect.
(b) It will not (1) sell or pledge or agree to sell or pledge or permit any Lien to exist on any stock owned by it of any of its material subsidi- aries; (2) amend its certificate of incorporation or by-laws; (3) split, combine or reclassify any outstanding capital stock; (4) other than as permitted by Section 6.2, declare, set aside or pay any dividend payable in cash, stock or other property with respect to any of its capital stock; or (5) repurchase, redeem or otherwise acquire, or permit any subsidiary to purchase or otherwise acquire, directly or indirectly, any shares of its capital stock or any securities convertible into or exercisable for any shares of its capital stock (other than such capital stock repurchased pursuant to the Dime Stock Plans and the Xxxxxx Stock Plans, as the case may be).
(c) Notwithstanding anything to the contrary contained in Section 6.3, neither it nor any of its subsidiaries will (1) issue, sell, pledge, dispose of or encumber, or authorize or propose the issuance, sale, pledge, disposition or encumbrance of, any shares of, or securities convertible or exchangeable for, or options, warrants, calls, commitments or rights of any kind to acquire, any shares of its capital stock of any class, with the exception of Di...
Conduct of Business Pending the Effective Time. During the period from the date of this Agreement and continuing until the earlier of the termination of this Agreement pursuant to its terms or the Effective Time, except (a) as may be required by Law, (b) to the extent Parent shall otherwise consent in writing, which consent shall not unreasonably be withheld, delayed or conditioned, and (c) as otherwise expressly required by this Agreement, the Company shall, and shall cause its Subsidiaries to, conduct its business in the ordinary course in all material respects, in substantially the same manner as heretofore conducted (including by using its commercially reasonable efforts to keep available the services of the current officers and key employees of the Company and each of its Subsidiaries). Without limiting the generality of the foregoing, except (i) as may be required by Law, (ii) to the extent Parent shall otherwise consent in writing, which consent, solely with respect to the matters in Sections 5.1(c)(i), 5.1(c)(ii), 5.1(c)(vii), 5.1(c)(viii), 5.1(e)(i), 5.1(f)(ii), 5.1(f)(iii), 5.1(g), 5.1(n) and 5.1(p) below, shall not unreasonably be withheld, delayed or conditioned, and (iii) as otherwise expressly required by this Agreement, during the period from the date of this Agreement and continuing until the earlier of the termination of this Agreement pursuant to its terms or the Effective Time, the Company agrees not to take any of the following actions (and to cause its Subsidiaries not to take such actions):
(a) amend its Organizational Documents;
(b) (i) issue, deliver, sell, pledge, transfer, dispose of or encumber any shares of capital stock or other equity or voting interests of the Company or any of its Subsidiaries or any securities convertible into, exchangeable or exercisable for or representing the right to subscribe for, purchase or otherwise receive any such shares or interests or any stock appreciation rights, “phantom” stock rights, performance units, rights to receive shares of capital stock or other rights that are linked to the value of the Company Common Stock or the value of the Company or any of its Subsidiaries or any part thereof; provided, however, that none of the foregoing shall prohibit the issuance of Company Common Stock upon the exercise of Company Stock Options outstanding as of the date of this Agreement, or (ii) effect any stock split, stock combination, stock reclassification, reverse stock split, stock dividend, recapitalization or other similar transaction with resp...
Conduct of Business Pending the Effective Time. From and after the date hereof and prior to the Effective Time or the date, if any, on which this Agreement is earlier terminated pursuant to Section 7.1 (the "Termination Date"), and except as may be agreed in writing by the other parties hereto, or as may be provided for or permitted pursuant to this Agreement or as disclosed on the Cyprus Disclosure Schedule:
(a) each of the parties shall, and shall cause each of its Subsidiaries to, conduct its operations according to their ordinary and usual course of business in substantially the same manner as heretofore conducted;
Conduct of Business Pending the Effective Time. Each of Dime and Xxxxxx agrees as to itself and its subsidiaries that, from and after the date hereof until the Effective Time, except insofar as the other party shall otherwise consent in writing (such consent not to be unreasonably withheld or delayed) or except as otherwise expressly contemplated by this Agreement or the Stock Option Agreements or as
Conduct of Business Pending the Effective Time. Seller agrees that from the date hereof until the Effective Time, unless otherwise consented to by Purchaser in writing (which consent shall not be unreasonably conditioned, withheld or delayed) or contemplated or permitted by this Agreement, Seller (a) shall conduct the Business in the ordinary course of business consistent with past practice and (b) shall not enter into any Contracts relating exclusively to the Restaurants except in the ordinary course of business and consistent with past practice.
